Supreme Court Summaries

Opinions filed July 11, 2013

The Hope Clinic for Women, Ltd. v. Flores, 2013 IL 112673

Appellate citation: 2011 IL App (1st) 101463.


      JUSTICE BURKE delivered the judgment of the court, with opinion.

      Justices Freeman, Garman, and Theis concurred in the judgment and opinion.

      Justice Thomas specially concurred, with opinion, joined by Chief Justice Kilbride and Justice Karmeier.


      This litigation was commenced in 2009 in the circuit court of Cook County by a physician who was a professor at the University of Illinois at Chicago and by The Hope Clinic for Women, Ltd., which is located in Granite City, Illinois. They complained of the Parental Notice of Abortion Act of 1995, which prevents a minor from exercising her right to obtain an abortion in Illinois unless a parent or guardian is first given notice of the minor’s intention to have an abortion or the minor obtains a judicial waiver of the notice requirement. Earlier in 2009, the Seventh Circuit Court of Appeals had held the Act facially valid under the United States Constitution in Zbaraz v. Madigan, 572 F.3d 370 (2009), and, in response, these plaintiffs filed this lawsuit, seeking to enjoin the Act’s enforcement and alleging that they could be subject to professional discipline and civil penalties for failure to comply with the Act’s requirements. This time the argument was based on the Illinois Constitution of 1970. Plaintiffs claimed a violation of their rights to privacy, equal protection, due process and gender equality. The due process and equal protection clauses of the Illinois Constitution are nearly identical to those of the Constitution of the United States. Illinois’ right to privacy is found in the search and seizure article, while its gender equality provision is stated in a separate article. Plaintiffs’ challenge is necessarily a facial one because the statute has never been enforced. The circuit court dismissed the complaint after granting a judgment on the pleadings for the defense, but the appellate court reversed and remanded for further proceedings.

      The Illinois Supreme Court said that, despite the long history of litigation associated with the Act, collateral estoppel does not apply to this case because the claims made here are brought under the Illinois Constitution of 1970, rather than under the Constitution of the United States, as in the previous litigation. The court also noted that a heavy burden of proof is borne by the statute’s challengers here because, in asserting facial invalidity, they must show that there are no possible circumstances in which the Act can be valid. In this decision, the Illinois Supreme Court held that the plaintiffs have no state constitutional claim.

      The parties do not dispute that a right to abortion exists under the Illinois Constitution, but they disagree as to its origin and scope. The Illinois Supreme Court rejected the plaintiffs’ claims that the Illinois right to privacy, found in the search and seizure clause, is the basis for the right to abortion in Illinois. The court held here that the right to an abortion derives from substantive due process principles encompassed within the Illinois due process clause, which should be interpreted the same way as the federal due process clause, absent a reason for doing otherwise. After the debates at the Constitutional Convention of 1970, the Illinois due process clause remained unchanged, and there is nothing which demonstrates an intent to construe that clause differently than the federal provision. Decisions of the Supreme Court of the United States have found parental notification statutes constitutional under federal substantive due process and equal protection law, and those precedents were followed here to find no due process or equal protection violation in Illinois.

      Plaintiffs alleged that the Act denies the right to privacy, a right found in the state, but not the federal, constitution. Nonetheless, the Illinois Supreme Court, noting that “reasonableness is the touchstone of the privacy clause,” found that the Act, in being narrowly crafted to promote minors’ best interests through parental consultation, is reasonable and, therefore, does not violate the state constitutional guarantee of privacy.

      The Illinois Constitution also contains a gender equality clause stating that “equal protection of the laws shall not be denied or abridged on account of sex.” However, the supreme court said that it failed to see how the Act creates a sex-based classification, and noted that it had already held that the Act does not violate equal protection.

      The circuit court’s dismissal of the complaint with prejudice was affirmed.